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Monday, November 21, 2011

Hearing on Landfill Petition Not "Fundamentally Unfair"

This case involved a decision by the Yorkville city council to deny a siting application to construct a landfill in the city.  The applicant, Fox Moraine, LLC, had challenged the denial with the Illinois Pollution Control Board (IPCB) on various grounds, including that the hearing was "fundamentally unfair" and the decision was inconsisent with the siting criteria required by law.  The IPCB ruled in favor of the city, and Fox Moraine appealed to the Second District Court of Appeals.

In considering the merits of Fox Moraine's appeal, the appellate court determined that although there were some questionable activities by certain city council members, the proceedings as a whole were not “fundamentally unfair.”  As a result, the appellate court upheld the IPCB’s decision affirming the City’s denial of the siting application.

While this case required the appellate court to consider criteria and procedures unique to landfill siting applications, the analysis used by the court to determine whether the proceedings were “fundamentally fair” can be instructive to municipalities in conducting other public hearings, such as those required for zoning applications.  For example, the case involved claims of bias on the part of the city council members and allegations that the members considered information outside the public hearing record - issues that could certainly find their way into a traditional zoning hearing.

To show bias, a petitioner must show whether a disinterested observer might conclude that the siting authority or its members had prejudged the facts or law of the case.  Here, the court determined that Fox Moraine had forfeited its claim of bias of certain council members by failing to raise the issue during the hearing, finding that the law is clear that a claim of disqualifying bias must be raised at the original proceeding.  The court also rejected Fox Moraine’s claim that the mayor was biased because she has no vote in the matter and there was nothing in the record to support Fox Moraine’s bias claims. The court further rejected Fox Moraine’s claim that the council rushed the final vote because fundamental fairness requires only that the record be made available for review by the entire council prior to voting and that the council’s decision be in writing and contain the reasons for the decision.  The court also found no evidence in the record to support Fox Moraine’s claim that one council member conducted her own research outside the record. 

As to Fox Maine's allegations of improper ex parte communications between city council members and the public, the appellate court recognized that these communications are inevitable because the members are local elected officials and not judges.  A reviewing court will not reverse a decision because a city council member has received an improper ex parte communication without evidence of prejudice to the petitioner.

The appellate court did, however, find certain actions by city council members to be questionable, including one council member’s creation of an anti-landfill website.  The court determined that this council member appeared to have pre-judged the application and may have failed to review the application based on the statutory criteria.  Nevertheless, the court determined that this was harmless error because even if the council member had been disqualified for bias, that would have left a majority of the council members voting against the application. 

The appellate court also rejected the city’s argument that a memorandum from its attorney was privileged, finding that the privilege had been waived by council members when they referenced the memorandum during the hearings.  Nonetheless, the court found that consideration of this memorandum by city council members without making it part of the record was harmless error as there was no prejudice to Fox Moraine.


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